International Criminal Court investigation in Kenya
Encyclopedia
The International Criminal Court investigation in Kenya or the situation in the Republic of Kenya is an ongoing investigation by the International Criminal Court
(ICC) into the events surrounding the 2007–2008 post-election violence
in Kenya
. Following presidential
and parliamentary elections
which took place in Kenya in December 2007, official results were disputed and a period of violence and unrest ensued. The Electoral Commission of Kenya
officially declared that the incumbent President Mwai Kibaki
was re-elected; however supporters of the opposition candidate Raila Odinga
accused the government of electoral fraud
and rejected the results. A large series of protests and demonstrations followed, and fighting, mainly along tribal lines, led to many deaths, injuries and displacements. After failed attempts to conduct a criminal investigation in Kenya to prosecute the key perpetrators, the matter was referred to the International Criminal Court in The Hague
. In 2010, the Prosecutor of the ICC announced that he was seeking summons
es for six people, including the incumbent Deputy Prime Minister Uhuru Kenyatta
and two other members of the National Assembly
. The six suspects, known colloquially as the "Ocampo six" were indicted by the ICC's Pre-Trial Chamber II on 8 March 2011 and summoned to appear before the Court.
The government of Kenya and the National Assembly have both attempted to stop the ICC process. The government has appealed to both the United Nations Security Council
and the Court itself regarding the admissibility of the case. Furthermore the National Assembly has voted in favour of removing Kenya as a State Party to the Rome Statute, the international treaty which established the ICC. Despite this opposition the suspects have cooperated with the proceedings and attended preliminary hearings in The Hague in April 2011. Hearings to decide whether to confirm the charges against the suspects concluded in September 2011. The option of holding these hearings in Kenya was considered by the Court, however the decision was made to hold the hearings at the seat of the Court in The Hague.
On 27 December 2007, a general election
was held in Kenya, comprising parliamentary
, presidential
and civic elections. The incumbent President, Mwai Kibaki
, who represents the Party of National Unity
and Raila Odinga
from the Orange Democratic Movement
were the leading candidates. Early indications showed that Odinga was likely to win the election, however the results announced by the Electoral Commission of Kenya
showed that Kibaki had been re-elected and he was sworn in as President. Immediately after the Electoral Commission's announcement, Odinga rejected the result, claiming that widespread electoral fraud
had taken place. European Union
electoral observers
also claimed that the electoral commission had failed to ensure the credibility of the vote.
In the days that followed violence spread throughout the country. An estimated 1,200 people died and more than 500,000 were displaced from their homes. A government spokesman accused Odinga's supporters of "engaging in ethnic cleansing
", while Odinga claimed that the President's supporters were "guilty, directly, of genocide
". Violence was mainly perpetrated along tribal lines; Mwai Kibaki is part of the Kikuyu tribe, the largest tribe in Kenya, while Odinga is a Luo. Violence continued until a peace deal was agreed upon between Kibaki and Odinga under the mediation of former United Nations
Secretary-General Kofi Annan
, whereby Kibaki would remain as President and Odinga would take over the newly-created office of the Prime Minister.
. In the mediation discussions the parties agreed to accords, one of which was to establish the Commission of Inquiry into the Post-Election Violence, chaired by Kenyan judge Philip Waki to investigate the violence and particularly the actions of the police. Waki's report recommended that the Kenyan government set up a tribunal to prosecute those responsible for the worst crimes. Although both Kibaki and Odinga voiced support for a local tribunal, the idea was rejected by the National Assembly. Waki passed his report, including a list of the names of those he considered most responsible for the violence back to Kofi Annan with instructions that it be passed to the International Criminal Court if progress with the local tribunal was not made. Annan gave the list, known as the "Waki List", to the International Criminal Court in July 2009. Initially the ICC gave the Kenyan government a deadline of July 2010 to establish a local tribunal before it would refer the case to the ICC Prosecutor Luis Moreno Ocampo
. The "Waki List" has so far not been made public, and there is speculation that it may contain more names than the six who were initially indicted by the ICC; consequently there have been some calls in Kenya for either the ICC or Waki to release the list.
, Hans-Peter Kaul
and Cuno Tarfusser
noted in their written ruling that while Article 15 of the Rome Statute does provide for allowing the Prosecutor to investigate and prosecute a case of his own volition, this is one of the more controversial aspects of the ICC. In the ICC's history, this case was the first time the Prosecutor decided to investigate a case in this manner, with all prior cases being referred to the Court either by a national government, or by the United Nations Security Council
.
Judge Hans-Peter Kaul made a dissenting opinion in the judgment, but the judgment was passed by a 2–1 majority. In his dissent he wrote:
es to be issued to them. The six men became colloquially known as the Ocampo Six (or Ocampo 6). The individuals named by Moreno Ocampo were:
at the International Criminal Tribunal for the former Yugoslavia
, to lead his legal team. Francis Muthaura initially appointed another British lawyer, Karim Ahmad Khan
, who previously led the defence of Charles Taylor at the Special Court for Sierra Leone
, and subsequently also recruited Essa Faal and Shyamala Alagendra who both formerly worked in the ICC Prosecutor's office. Ali's defense will be led by Canadian John Philpot, Kosgey's will be led by Julius Kemboi, and William Ruto has appointed Dr. Kindiki Kithure and Katwa Kigeni (Kigeni is also representing Joshua Sang). The Kenyan government has agreed to pay the legal costs of Francis Muthaura and Mohamed Ali due to their actions being taken in the course of their public employment. This decision has attracted criticism from many Kenyans.
On 8 March 2011 Pre-Trial Chamber II issued its verdict that there were reasonable grounds to believe that the six suspects named by Moreno Ocampo had committed crimes against humanity
and issued summons
es for their appearance in the Court. The charges against the six suspects were divided into two separate cases, one case is the prosecution of Ali, Kenyatta, and Mathaura, and the second case is the prosecution of Kosgey, Ruto, and Sang.
's supporters' actions against the supporters of the government, William Ruto, Henry Kosgey, and Joshua Sang were charges with three counts of crimes against humanity:
Pre-Trial Chamber II ruled that there were reasonable grounds to be believe that William Ruto and Henry Kosgey were criminally responsible as indirect co-perpetrators of these crimes but in the case of Joshua Sang, it ruled that his involvement was not essential to the commission of the crimes and so only ruled that there were grounds to believe he otherwise contributed to the crimes. Additionally, the Chamber rejected the request by the Prosecutor to include a further charge of torture.
The Chamber ruled that there were reasonable grounds to believe that Uhuru Kenyatta and Francis Muthaura were guilty as indirect co-perpetrators of these crimes. In the case of Mohammed Ali, the Chamber ruled that his contribution was not essential to the commission of the crimes and so he was charged with having otherwise contributed to the same crimes.
The hearing in the case of Ruto, Kosgey and Sang began on 1 September 2011 and concluded on 12 September. The judges are now deliberating and will issue a judgement within 60 days. The hearing in the case of Kenyatta, Ali and Mathaura began on 21 September 2011. An application by the Office of the Prosecutor to impose conditions on the suspects' summonses including that they provide details of all their home addresses and that they pay a bond to the Court was rejected by Judge Trendafilova.
, which claimed that holding the hearings in Kenya would bring the justice process closer to victims. The idea of holding the hearings in Kenya was also supported by the defendants Francis Mathaura and Henry Kosgey, with Mathaura suggesting holding the hearings in a military barracks for enhanced security as well as suggesting the possibility of holding the hearings in Arusha
, Tanzania
, which is the location of the International Criminal Tribunal for Rwanda
. The move was opposed by the Prosecution, who cited security concerns as an obstacle, and also by Ali, Kenyatta, Ruto, and Sang who cited the possibility that a change of venue would lead to delays in the trial process in submissions made to the Court. On 29 June Judge Trendafilova ruled that the hearings will take place at the seat of the Court in The Hague.
had previously been thrown out of the National Assembly by Deputy Speaker Farah Maalim
who ruled it was unconstitutional; however an amended version was introduced the following day and passed. During the debate, the Minister for Energy Kiraitu Murungi claimed the ICC was a colonialist, imperialist court. This motion did not itself affect Kenya's status as a State Party to the Rome Statute, but rather obliges ministers to move to repeal Kenya's International Crimes Act which ratified the Rome Statute and made necessarily changes to Kenyan's criminal code. In February 2011, Kenya appealed to the United Nations Security Council
, asking it to defer the trials at The Hague. Some critics in Kenya have also questioned the constitutionality of the Rome Statute, arguing that it is incompatible with the Constitution of Kenya
, which was passed by a referendum in 2010
.
The Kenyan government's attempt to defer the cases at the ICC by appealing to members of the UN Security Council failed without being voted on, however the government, represented by British lawyers Geoffrey Nice and Rodney Dixon, have subsequently applied directly to the Court. The Kenyan government's application to Pre-Trial Chamber II that the two cases were inadmissible was rejected unanimously by the judges. Many victims of the post-election violence voiced opposition to the government's stance, and a poll of Kenyans conducted by Synovate
shortly after Moreno Ocampo's announcement that he intended to seek summonses showed that 60% of Kenyans supported the trial of the accused taking place in The Hague.
President
Barack Obama
called upon Kenya to cooperate with the ICC. In a statement he said:
The African Union
endorsed the position of the Kenyan government in seeking to delay or postpone the ICC proceedings. As of 2011, all of the formal investigations which have been put before the International Criminal Court have concerned African countries, and only African defendants have been indicted. This has led to some resentment within Africa that the Court is targeting Africa unfairly. In particular the African Union has cited this geographical imbalance of ICC investigations in its decisions not to cooperate in the proceedings against Sudan
ese President Omar al-Bashir
and Libya
n leader Muammar Gaddafi
. The ICC Deputy Prosecutor Fatou Bensouda
denied that the ICC or its prosecutors are discriminatory, speaking in Côte d'Ivoire
she said:
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
(ICC) into the events surrounding the 2007–2008 post-election violence
2007–2008 Kenyan crisis
The 2007–2008 Kenyan crisis refers to a political, economic, and humanitarian crisis that erupted in Kenya after incumbent President Mwai Kibaki was declared the winner of the presidential election held on December 27, 2007. Supporters of Kibaki's opponent, Raila Odinga of the Orange Democratic...
in Kenya
Kenya
Kenya , officially known as the Republic of Kenya, is a country in East Africa that lies on the equator, with the Indian Ocean to its south-east...
. Following presidential
Kenyan presidential election, 2007
A presidential election was held as part of the Kenyan general election on December 27, 2007; parliamentary elections were held on the same date. Incumbent President Mwai Kibaki was declared the winner and sworn in on December 30, despite opposition leader Raila Odinga's claims of victory...
and parliamentary elections
Kenyan parliamentary election, 2007
Parliamentary elections in Kenya were held as part of the Kenyan general election on December 27, 2007; presidential elections were held on the same date....
which took place in Kenya in December 2007, official results were disputed and a period of violence and unrest ensued. The Electoral Commission of Kenya
Electoral Commission of Kenya
Electoral Commission of Kenya refers to the now defunct commission that was disbanded by the 10th Parliament in 2008 and replaced with the Interim Independent Electoral Commission of Kenya. Samuel Kivuitu the last Chairman of the Commission and the commissioners at the time of disbanding, in...
officially declared that the incumbent President Mwai Kibaki
Mwai Kibaki
Mwai Kibaki is the current and third President of the republic of Kenya.Kibaki was previously Vice President of Kenya for ten years from 1978–1988 and also held cabinet ministerial positions, including a widely acclaimed stint as Minister for Finance , Minister for Home Affairs and Minister for...
was re-elected; however supporters of the opposition candidate Raila Odinga
Raila Odinga
Raila Amollo Odinga , also popularly known to Kenyans as Agwambo, is a Kenyan politician, currently serving as the Prime Minister of Kenya in a coalition government. He has served as a Member of Parliament for Langata since 1992, was Minister of Energy from 2001 to 2002, and was Minister of Roads,...
accused the government of electoral fraud
Electoral fraud
Electoral fraud is illegal interference with the process of an election. Acts of fraud affect vote counts to bring about an election result, whether by increasing the vote share of the favored candidate, depressing the vote share of the rival candidates or both...
and rejected the results. A large series of protests and demonstrations followed, and fighting, mainly along tribal lines, led to many deaths, injuries and displacements. After failed attempts to conduct a criminal investigation in Kenya to prosecute the key perpetrators, the matter was referred to the International Criminal Court in The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
. In 2010, the Prosecutor of the ICC announced that he was seeking summons
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
es for six people, including the incumbent Deputy Prime Minister Uhuru Kenyatta
Uhuru Kenyatta
Uhuru Muigai Kenyatta is a Kenyan politician, currently serving as Deputy Prime Minister, Minister for Finance and MP for Gatundu South Constituency. He is the Chairman of Kenya African National Union , the former ruling party, which is currently part of the Party of National Unity...
and two other members of the National Assembly
National Assembly of Kenya
The unicameral National Assembly of Kenya is the country's legislative body.The current National Assembly has a total of 224 members. 210 members are directly elected in single member constituencies using the simple majority system...
. The six suspects, known colloquially as the "Ocampo six" were indicted by the ICC's Pre-Trial Chamber II on 8 March 2011 and summoned to appear before the Court.
The government of Kenya and the National Assembly have both attempted to stop the ICC process. The government has appealed to both the United Nations Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
and the Court itself regarding the admissibility of the case. Furthermore the National Assembly has voted in favour of removing Kenya as a State Party to the Rome Statute, the international treaty which established the ICC. Despite this opposition the suspects have cooperated with the proceedings and attended preliminary hearings in The Hague in April 2011. Hearings to decide whether to confirm the charges against the suspects concluded in September 2011. The option of holding these hearings in Kenya was considered by the Court, however the decision was made to hold the hearings at the seat of the Court in The Hague.
Background
Kenyan general election, 2007
Kenyan general election, 2007 was held on 27 December 2007 . It comprised Presidential, parliamentary and civic elections. The previous general election in Kenya was held in 2002.-See also:*Kenyan presidential election, 2007...
was held in Kenya, comprising parliamentary
Kenyan parliamentary election, 2007
Parliamentary elections in Kenya were held as part of the Kenyan general election on December 27, 2007; presidential elections were held on the same date....
, presidential
Kenyan presidential election, 2007
A presidential election was held as part of the Kenyan general election on December 27, 2007; parliamentary elections were held on the same date. Incumbent President Mwai Kibaki was declared the winner and sworn in on December 30, despite opposition leader Raila Odinga's claims of victory...
and civic elections. The incumbent President, Mwai Kibaki
Mwai Kibaki
Mwai Kibaki is the current and third President of the republic of Kenya.Kibaki was previously Vice President of Kenya for ten years from 1978–1988 and also held cabinet ministerial positions, including a widely acclaimed stint as Minister for Finance , Minister for Home Affairs and Minister for...
, who represents the Party of National Unity
Party of National Unity (Kenya)
Party of National Unity was founded as a political coalition of parties in Kenya. On September 16, 2007, Kenyan President Mwai Kibaki announced the party formation and said that he would run as its presidential candidate in the December 2007 Kenyan elections...
and Raila Odinga
Raila Odinga
Raila Amollo Odinga , also popularly known to Kenyans as Agwambo, is a Kenyan politician, currently serving as the Prime Minister of Kenya in a coalition government. He has served as a Member of Parliament for Langata since 1992, was Minister of Energy from 2001 to 2002, and was Minister of Roads,...
from the Orange Democratic Movement
Orange Democratic Movement
Orange Democratic Movement refers to a political party in Kenya, which is the successor of a former grassroots people's movement which was formed in the 2005 Kenyan constitutional referendum. The erstwhile single party which separated in August 2007 into two...
were the leading candidates. Early indications showed that Odinga was likely to win the election, however the results announced by the Electoral Commission of Kenya
Electoral Commission of Kenya
Electoral Commission of Kenya refers to the now defunct commission that was disbanded by the 10th Parliament in 2008 and replaced with the Interim Independent Electoral Commission of Kenya. Samuel Kivuitu the last Chairman of the Commission and the commissioners at the time of disbanding, in...
showed that Kibaki had been re-elected and he was sworn in as President. Immediately after the Electoral Commission's announcement, Odinga rejected the result, claiming that widespread electoral fraud
Electoral fraud
Electoral fraud is illegal interference with the process of an election. Acts of fraud affect vote counts to bring about an election result, whether by increasing the vote share of the favored candidate, depressing the vote share of the rival candidates or both...
had taken place. European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
electoral observers
Election monitoring
Election monitoring is the observation of an election by one or more independent parties, typically from another country or a non-governmental organization , primarily to assess the conduct of an election process on the basis of national legislation and international standards. There are national...
also claimed that the electoral commission had failed to ensure the credibility of the vote.
In the days that followed violence spread throughout the country. An estimated 1,200 people died and more than 500,000 were displaced from their homes. A government spokesman accused Odinga's supporters of "engaging in ethnic cleansing
Ethnic cleansing
Ethnic cleansing is a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic orreligious group from certain geographic areas....
", while Odinga claimed that the President's supporters were "guilty, directly, of genocide
Genocide
Genocide is defined as "the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious, or national group", though what constitutes enough of a "part" to qualify as genocide has been subject to much debate by legal scholars...
". Violence was mainly perpetrated along tribal lines; Mwai Kibaki is part of the Kikuyu tribe, the largest tribe in Kenya, while Odinga is a Luo. Violence continued until a peace deal was agreed upon between Kibaki and Odinga under the mediation of former United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Secretary-General Kofi Annan
Kofi Annan
Kofi Atta Annan is a Ghanaian diplomat who served as the seventh Secretary-General of the UN from 1 January 1997 to 31 December 2006...
, whereby Kibaki would remain as President and Odinga would take over the newly-created office of the Prime Minister.
Waki report and referral to the ICC
The mediation between Kibaki and Odinga in 2008 which resulted in a coalition governmentCoalition government
A coalition government is a cabinet of a parliamentary government in which several political parties cooperate. The usual reason given for this arrangement is that no party on its own can achieve a majority in the parliament...
. In the mediation discussions the parties agreed to accords, one of which was to establish the Commission of Inquiry into the Post-Election Violence, chaired by Kenyan judge Philip Waki to investigate the violence and particularly the actions of the police. Waki's report recommended that the Kenyan government set up a tribunal to prosecute those responsible for the worst crimes. Although both Kibaki and Odinga voiced support for a local tribunal, the idea was rejected by the National Assembly. Waki passed his report, including a list of the names of those he considered most responsible for the violence back to Kofi Annan with instructions that it be passed to the International Criminal Court if progress with the local tribunal was not made. Annan gave the list, known as the "Waki List", to the International Criminal Court in July 2009. Initially the ICC gave the Kenyan government a deadline of July 2010 to establish a local tribunal before it would refer the case to the ICC Prosecutor Luis Moreno Ocampo
Luis Moreno Ocampo
José Luis Moreno OcampoMoreno Ocampo's surnames are often hyphenated in English-language media to distinguish Moreno as a surname, rather than a given name. is an Argentine lawyer who has been the Prosecutor of the International Criminal Court since June 16, 2003...
. The "Waki List" has so far not been made public, and there is speculation that it may contain more names than the six who were initially indicted by the ICC; consequently there have been some calls in Kenya for either the ICC or Waki to release the list.
Pre-Trial Chamber authorization
Following the application by Moreno Ocampo dated 26 November 2009, Pre-Trial Chamber II granted authorization to the Office of the Prosecutor to conduct an investigation on 31 March 2010. The judges who made this decision, Ekaterina TrendafilovaEkaterina Trendafilova
Ekaterina Trendafilova is a Bulgarian judge who currently serves as a judge of the International Criminal Court.Prior to her appointment to the ICC she was a professor of criminal justice at Sofia University and a deputy district attorney at Sofia District Court.Currently judge Trendafilova is the...
, Hans-Peter Kaul
Hans-Peter Kaul
Hans-Peter Kaul is a German judge, international law scholar, and former diplomat. Since 11 March 2003 he has served as Justice at the International Criminal Court in The Hague...
and Cuno Tarfusser
Cuno Tarfusser
Cuno Jakob Tarfusser is an Italian Judge who currently sits as a judge of the International Criminal Court.Prior to his appointment to the ICC, he had an extensive legal career in Italy as a prosecutor, including holding the office of Chief Public Prosecutor. He studied at the University of...
noted in their written ruling that while Article 15 of the Rome Statute does provide for allowing the Prosecutor to investigate and prosecute a case of his own volition, this is one of the more controversial aspects of the ICC. In the ICC's history, this case was the first time the Prosecutor decided to investigate a case in this manner, with all prior cases being referred to the Court either by a national government, or by the United Nations Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
.
Judge Hans-Peter Kaul made a dissenting opinion in the judgment, but the judgment was passed by a 2–1 majority. In his dissent he wrote:
Suspects
On 15 December 2010, Prosecutor Luis Moreno Ocampo named six suspects, and made an application to Pre-Trial Chamber II for summonsSummons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
es to be issued to them. The six men became colloquially known as the Ocampo Six (or Ocampo 6). The individuals named by Moreno Ocampo were:
- Mohammed Hussein AliMohammed Hussein AliMajor General Mohammed Hussein Ali is an ethnic Somali military commander. He was the former Commissioner of the Kenya Police, and is currently Chief Executive of the Postal Corporation of Kenya.-Early life:...
– the Chief Executive of the Postal Corporation of KenyaPostal Corporation of KenyaPostal Corporation of Kenya is the company responsible for postal service in Kenya . It is also known as Posta Kenya.Kenyan post system was formerly part of the Kenya Post & Telecommunication Corporation , which was split into Posta, the Communication Commission of Kenya and Telkom Kenya in 1999 ....
, who at the time of the post-election violence had been the Commissioner of the Kenya PoliceKenya PoliceThe Kenya Police is a national body in charge of law enforcement in the East Africa State of Kenya. While organised at a national level, each arm reports to a Provincial police authority, which in turn divides its force by local Police Divisions, headquartered at local police stations...
, he was accused of facilitating attacks against supporters of Odinga's Orange Democratic Movement (ODM); - Uhuru Muigai KenyattaUhuru KenyattaUhuru Muigai Kenyatta is a Kenyan politician, currently serving as Deputy Prime Minister, Minister for Finance and MP for Gatundu South Constituency. He is the Chairman of Kenya African National Union , the former ruling party, which is currently part of the Party of National Unity...
– the Deputy Prime Minister and Minister for Finance, he was accused of mobilising the outlawed MungikiMungikiMungiki is a politico-religious group and a banned criminal organization in Kenya. The name means "A united people" or "multitude" in the Kikuyu language. The religion, which apparently originated in the late 1980s, is secretive and bears some similarity to mystery religions. Specifics of their...
group to attack ODM supporters; - Henry Kiprono Kosgey – the Minister for Industrialisation and member of the National Assembly for the Tinderet ConstituencyTinderet ConstituencyTinderet Constituency is an electoral constituency in Kenya. It is one of four constituencies of Nandi District. The constituency was established for the 1966 elections.- Members of Parliament :- Wards :...
, he was also accused of planning and organizing crimes against supporters of Kibaki's Party of National Unity (PNU); - Francis Kirimi MuthauraFrancis MuthauraFrancis Kirimi Muthaura is a prominent Kenyan civil servant. Muthaura is a close ally of President Mwai Kibaki. He is the Head of Civil Service and Secretary to the Cabinet....
– the cabinet secretary and chairman of the National Security Advisory Committee, he was accused of authorising the police to use excessive force against ODM supporters and to facilitate attacks against the opposition; - William Samoei RutoWilliam RutoWilliam Kipchirchir Samoei arap Ruto is a Kenyan politician who was Minister for Higher Education until 19 October 2010 after being suspended for corruption. He is also one of the two deputy party leaders of the Orange Democratic Movement. He had previously served in the Ministry of Agriculture...
– the Minister for Higher Education, Science and Technology and member of the National Assembly for the Eldoret North ConstituencyEldoret North ConstituencyEldoret North Constituency is an electoral constituency in Kenya. It is one of three constituencies in Uasin Gishu District. The constituency was established for the 1966 elections.The current Eldoret North MP is William Ruto, a prominent Kenyan politician....
, he was accused of planning and organizing crimes against PNU supporters - Joshua Arap SangJoshua SangJoshua arap Sang, born in Kitale, Trans-Nzoia District, Kenya, is the current the head of operations at Kass FM in Nairobi, Kenya.On March 8, 2011, he was indicted by the International Criminal Court for four charges of crimes against humanity committed during the 2007–2008 Kenyan crisis...
– the head of operations at the radio station KASS FM, he was accused of using his radio broadcasts to send messages of assistance to those committing acts of violence against PNU supporters.
Legal representation
It was reported in 2011 that Kenyatta has recruited British lawyers Steven Kay and Gillian Higgins, who previously defended Slobodan MilosevicSlobodan Milošević
Slobodan Milošević was President of Serbia and Yugoslavia. He served as the President of Socialist Republic of Serbia and Republic of Serbia from 1989 until 1997 in three terms and as President of the Federal Republic of Yugoslavia from 1997 to 2000...
at the International Criminal Tribunal for the former Yugoslavia
International Criminal Tribunal for the former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
, to lead his legal team. Francis Muthaura initially appointed another British lawyer, Karim Ahmad Khan
Karim Ahmad Khan
Karim Ahmad Khan is a British lawyer and specialist in international criminal law and international human rights law. He was called to the bar in 1992 at London's Lincoln's Inn and later attended Wolfson College at Oxford University for doctoral studies in law...
, who previously led the defence of Charles Taylor at the Special Court for Sierra Leone
Special Court for Sierra Leone
The Special Court for Sierra Leone is an independent judicial body set up to "try those who bear greatest responsibility" for the war crimes and crimes against humanity committed in Sierra Leone after 30 November 1996 during the Sierra Leone Civil War...
, and subsequently also recruited Essa Faal and Shyamala Alagendra who both formerly worked in the ICC Prosecutor's office. Ali's defense will be led by Canadian John Philpot, Kosgey's will be led by Julius Kemboi, and William Ruto has appointed Dr. Kindiki Kithure and Katwa Kigeni (Kigeni is also representing Joshua Sang). The Kenyan government has agreed to pay the legal costs of Francis Muthaura and Mohamed Ali due to their actions being taken in the course of their public employment. This decision has attracted criticism from many Kenyans.
Charges
Crime against humanity
Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings...
and issued summons
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
es for their appearance in the Court. The charges against the six suspects were divided into two separate cases, one case is the prosecution of Ali, Kenyatta, and Mathaura, and the second case is the prosecution of Kosgey, Ruto, and Sang.
William Ruto, Henry Kosgey, and Joshua Sang
In the case which concerns the Orange Democratic MovementOrange Democratic Movement
Orange Democratic Movement refers to a political party in Kenya, which is the successor of a former grassroots people's movement which was formed in the 2005 Kenyan constitutional referendum. The erstwhile single party which separated in August 2007 into two...
's supporters' actions against the supporters of the government, William Ruto, Henry Kosgey, and Joshua Sang were charges with three counts of crimes against humanity:
- Murder, constituting a crime against humanity in violation of article 7(1)(a) of the Rome Statute;
- Deportation or forcible transfer of a population, constituting a crime against humanity in violation of article 7(1)(d) of the Rome Statute;
- Persecution, constituting a crime against humanity in violation of article 7(1)(h) of the Rome Statute.
Pre-Trial Chamber II ruled that there were reasonable grounds to be believe that William Ruto and Henry Kosgey were criminally responsible as indirect co-perpetrators of these crimes but in the case of Joshua Sang, it ruled that his involvement was not essential to the commission of the crimes and so only ruled that there were grounds to believe he otherwise contributed to the crimes. Additionally, the Chamber rejected the request by the Prosecutor to include a further charge of torture.
Francis Muthaura, Uhuru Kenyatta, and Mohammed Ali
In the case which concerns the members and supporters of the government's actions against the opposition, Francis Muthaura, Uhuru Kenyatta, and Mohammed Ali were charged with five counts of crimes against humanity:- Murder, constituting a crime against humanity in violation of article 7(1)(a) of the Rome Statute;
- Deportation or forcible transfer of a population, constituting a crime against humanity in violation of article 7(1)(d) of the Rome Statute;
- Rape and other forms of sexual violence, constituting a crime against humanity in violation of article 7(1)(g) of the Rome Statute;
- Persecution, constituting a crime against humanity in violation of article 7(1)(h) of the Rome Statute;
- Inhumane acts, constituting a crime against humanity in violation of article 7(1)(k) of the Rome Statute.
The Chamber ruled that there were reasonable grounds to believe that Uhuru Kenyatta and Francis Muthaura were guilty as indirect co-perpetrators of these crimes. In the case of Mohammed Ali, the Chamber ruled that his contribution was not essential to the commission of the crimes and so he was charged with having otherwise contributed to the same crimes.
Pre-trial phase
On 8 March 2011, Pre-Trial Chamber II issued summonses to appear for all six of the suspects in the two cases. As with the decision to authorise the investigation by the Prosecutor, Judge Hans-Peter Kaul dissented and opposed the issuance of summonses.Initial hearings
On 7 April 2011, the initial hearing took place in the case of Ruto, Kosgey, and Sang, and the following day the corresponding hearing in the case of Kenyatta, Ali, and Mathaura also took place at the seat of the Court in The Hague. During the hearing, presiding Judge Ekaterina Trendafilova expressed concern at some of the actions of the suspects, in particular speeches that may have been made in an attempt to incite further violence in Kenya. Speaking at the initial hearing she said:The hearing in the case of Ruto, Kosgey and Sang began on 1 September 2011 and concluded on 12 September. The judges are now deliberating and will issue a judgement within 60 days. The hearing in the case of Kenyatta, Ali and Mathaura began on 21 September 2011. An application by the Office of the Prosecutor to impose conditions on the suspects' summonses including that they provide details of all their home addresses and that they pay a bond to the Court was rejected by Judge Trendafilova.
Location of confirmation of charges hearings
In June 2011, Pre-Trial Chamber II requested that the Prosecutor, defendants, and victims comment on the possibility of holding the confirmation of charges hearings in Kenya rather than in The Hague. This move was supported by Amnesty InternationalAmnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
, which claimed that holding the hearings in Kenya would bring the justice process closer to victims. The idea of holding the hearings in Kenya was also supported by the defendants Francis Mathaura and Henry Kosgey, with Mathaura suggesting holding the hearings in a military barracks for enhanced security as well as suggesting the possibility of holding the hearings in Arusha
Arusha
Arusha is a city in northern Tanzania. It is the capital of the Arusha Region, which claims a population of 1,288,088, including 281,608 for the Arusha District . Arusha is surrounded by some of Africa's most famous landscapes and national parks...
, Tanzania
Tanzania
The United Republic of Tanzania is a country in East Africa bordered by Kenya and Uganda to the north, Rwanda, Burundi, and the Democratic Republic of the Congo to the west, and Zambia, Malawi, and Mozambique to the south. The country's eastern borders lie on the Indian Ocean.Tanzania is a state...
, which is the location of the International Criminal Tribunal for Rwanda
International Criminal Tribunal for Rwanda
The International Criminal Tribunal for Rwanda is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of international law in Rwanda, or by Rwandan...
. The move was opposed by the Prosecution, who cited security concerns as an obstacle, and also by Ali, Kenyatta, Ruto, and Sang who cited the possibility that a change of venue would lead to delays in the trial process in submissions made to the Court. On 29 June Judge Trendafilova ruled that the hearings will take place at the seat of the Court in The Hague.
Participation of victims
The procedures of the ICC allow for the participation of victims who may submit views and observations to the Court and also apply for reparations. As of 28 June 2011, at least 2,350 Kenyans have requested to participate in the legal process as victims. The Court's Victims Participation and Reparations Section manages the participation of victims in the trials before the Court.Response within Kenya
On 22 December 2010, a week after the ICC Prosecutor announced the individuals he was seeking to prosecute, the Kenyan National Assembly passed a motion seeking to withdraw Kenya as a State Party the Rome Statute, the treaty which established the International Criminal Court is founded. The motion, which was introduced by Assemblymember Isaac RutoIsaac Ruto
Isaac Kiprono Ruto is a Kenyan politician. He belongs to the Orange Democratic Movement and was elected to represent the Chepalungu Constituency in the National Assembly of Kenya since the Kenyan parliamentary election, 2007.-References:...
had previously been thrown out of the National Assembly by Deputy Speaker Farah Maalim
Farah Maalim
Farah Maalim Mohamed is a renowned ethnic Somali politician with almost two decades of experience on the Kenyan political scene. He is the current Deputy Speaker of the National Assembly of Kenya.-Biography:...
who ruled it was unconstitutional; however an amended version was introduced the following day and passed. During the debate, the Minister for Energy Kiraitu Murungi claimed the ICC was a colonialist, imperialist court. This motion did not itself affect Kenya's status as a State Party to the Rome Statute, but rather obliges ministers to move to repeal Kenya's International Crimes Act which ratified the Rome Statute and made necessarily changes to Kenyan's criminal code. In February 2011, Kenya appealed to the United Nations Security Council
United Nations Security Council
The United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
, asking it to defer the trials at The Hague. Some critics in Kenya have also questioned the constitutionality of the Rome Statute, arguing that it is incompatible with the Constitution of Kenya
Constitution of Kenya
The 1963 Constitution of Kenya was drawn up at independence. This constitution, heavily indebted to English law, had already been amended more than 30 times by 2010, but was widely agreed to require a major overhaul...
, which was passed by a referendum in 2010
Kenyan constitutional referendum, 2010
A constitutional referendum was held in Kenya on August 4, 2010 on whether to adopt a proposed new constitution passed by parliament on April 1, 2010...
.
The Kenyan government's attempt to defer the cases at the ICC by appealing to members of the UN Security Council failed without being voted on, however the government, represented by British lawyers Geoffrey Nice and Rodney Dixon, have subsequently applied directly to the Court. The Kenyan government's application to Pre-Trial Chamber II that the two cases were inadmissible was rejected unanimously by the judges. Many victims of the post-election violence voiced opposition to the government's stance, and a poll of Kenyans conducted by Synovate
Synovate
Synovate was a market research firm owned by the Aegis Group. It was formed from the acquisition of a number of smaller market research firms. It has a number of different divisions, such as Synovate Healthcare, Synovate Customer Experience, Synovate Censydiam and Motoresearch. They claimed...
shortly after Moreno Ocampo's announcement that he intended to seek summonses showed that 60% of Kenyans supported the trial of the accused taking place in The Hague.
International response
Following Moreno Ocampo's initial announcement of his intention to bring prosecutions against the six suspects, United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
called upon Kenya to cooperate with the ICC. In a statement he said:
The African Union
African Union
The African Union is a union consisting of 54 African states. The only all-African state not in the AU is Morocco. Established on 9 July 2002, the AU was formed as a successor to the Organisation of African Unity...
endorsed the position of the Kenyan government in seeking to delay or postpone the ICC proceedings. As of 2011, all of the formal investigations which have been put before the International Criminal Court have concerned African countries, and only African defendants have been indicted. This has led to some resentment within Africa that the Court is targeting Africa unfairly. In particular the African Union has cited this geographical imbalance of ICC investigations in its decisions not to cooperate in the proceedings against Sudan
Sudan
Sudan , officially the Republic of the Sudan , is a country in North Africa, sometimes considered part of the Middle East politically. It is bordered by Egypt to the north, the Red Sea to the northeast, Eritrea and Ethiopia to the east, South Sudan to the south, the Central African Republic to the...
ese President Omar al-Bashir
Omar al-Bashir
Lieutenant General Omar Hassan Ahmad Al-Bashir is the current President of Sudan and the head of the National Congress Party. He came to power in 1989 when he, as a brigadier in the Sudanese army, led a group of officers in a bloodless military coup that ousted the government of Prime Minister...
and Libya
Libya
Libya is an African country in the Maghreb region of North Africa bordered by the Mediterranean Sea to the north, Egypt to the east, Sudan to the southeast, Chad and Niger to the south, and Algeria and Tunisia to the west....
n leader Muammar Gaddafi
Muammar Gaddafi
Muammar Muhammad Abu Minyar Gaddafi or "September 1942" 20 October 2011), commonly known as Muammar Gaddafi or Colonel Gaddafi, was the official ruler of the Libyan Arab Republic from 1969 to 1977 and then the "Brother Leader" of the Libyan Arab Jamahiriya from 1977 to 2011.He seized power in a...
. The ICC Deputy Prosecutor Fatou Bensouda
Fatou Bensouda
Fatou B. Bensouda is a Gambian lawyer, former government civil servant, international criminal law prosecutor and legal adviser. She has been a Deputy Prosecutor in charge of the Prosecutions Division of the International Criminal Court since 2004...
denied that the ICC or its prosecutors are discriminatory, speaking in Côte d'Ivoire
Côte d'Ivoire
The Republic of Côte d'Ivoire or Ivory Coast is a country in West Africa. It has an area of , and borders the countries Liberia, Guinea, Mali, Burkina Faso and Ghana; its southern boundary is along the Gulf of Guinea. The country's population was 15,366,672 in 1998 and was estimated to be...
she said:
External links
- Situation in the Republic of Kenya – International Criminal Court